By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Theft by check is governed by Texas Penal Code 31.03(e). Issuance of a bad check (“IBC”), is controlled by section 32.41. The differences are simple, but major — one charge is like any other theft charge, and the other is simply writing a bad check. Most theft by check charges are class b misdemeanors or above ($20 to $500 are class b misdemeanors) while an IBC charge is a class c misdemeanor — the lowest level of offense in Texas.
Theft is a crime of moral turpitude while IBC is not. Further, class b misdemeanors are more difficult to have expunged than class c misdemeanors.
Theft in Texas is simply defined when a person, “…unlawfully appropriates property with intent to deprive the owner of property.” A Theft by check is merely a theft where the check was the instrumentality of the offense.
Issuance of a bad check is where a person, “issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.”
The theft and IBC statutes have many different mechanisms for legal presumptions which may be used at trial to try and prove that the accused had knowledge of bad nature of the check which you can review if you are interested here.
Here’s what you need to know if you’re being charged — know exactly which charge you are accused of! In Collin County, the District Attorney’s office prosecutes many theft by check cases. Quite possibly many of these could also have been brought as a class c IBC. The State in these types of cases have very technical and difficult tasks of proving knowledge of the check being bad at the time it was issued — and as a result these cases can be very winnable.
Never simply “pay the ticket” without knowing exactly what it is you are being accused of doing. This is a recipe for disaster when you discover 3, 4, or 10 years later that you really plead guilty to theft when all you did was bounce a check!
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice, you should always consult an attorney.